Calling it quits

The area of the Fontaines’ land for a proposed 34-unit subdivision is currently part of a sand pit. The site’s current Act 250 permit requires it to be replanted with trees after 2016. (Observer photo by Stephanie Choate)

Fontaines give up on Settlers Village after eight years; allocation available

By Stephanie Choate

Observer staff

July 3, 2013

Vermont’s white-tailed deer were at the center of years of environmental court proceedings between the state and North Williston farmers looking to build a 34-unit subdivision.

“The deer won on this one,” said Mike Fontaine ruefully, looking out over the site where he had expected to one day see clusters of family homes, as a light rain fell on Monday.

After working for eight years on a housing project on a corner of their North Williston farm, Mike and Dan Fontaine have given up on Settlers Village. The Fontaines decided to withdraw their appeal in late May after the state denied an Act 250 permit and subsequent appeals for the project. Last week, they signed a letter to the town relinquishing their growth management allocation.

“We ran out of money,” Mike Fontaine said. “They bled us dry.”

Environmental agencies contended that the development would compromise a deer wintering habitat crucial for the survival of a local herd. But the Fontaines and their attorney, John O’Donnell, said the approximately 280 acres of land set to be conserved through the project mitigated the issues.

“In my opinion, they (the Fontaines) used Act 250 as a blueprint for the plan for the project, and the Agency of Natural Resources turned around and used Act 250 to defeat a project,” O’Donnell said. “It seemed, frankly, to be completely contradictory to what Act 250 should be used for.”

Fontaine said that Williston and the state lost out on 280 acres of land—more than 80 of which is deer wintering habitat—that would have been conserved in perpetuity.

“Our firm does a fair amount of work of this type, and it seemed to us that this is a great example of ANR being very short-sighted,” O’Donnell said. “They had an opportunity to preserve close to 300 acres in Williston and to actually increase the protection for a deer wintering area, and instead they took a position that doesn’t seem at all to be consistent with the best long-term development for Williston or for this section of Vermont.”

“They had a chance to lock this up forever,” Fontaine said.

He said he recalled sitting across the table from state agencies during court proceedings and thinking they should be working on the same side.

“It’s horrible,” Fontaine said. “It doesn’t make any sense.”

PROTECTING THE DEER

While Vermont has some 140,000 deer, the state contends that the area is a critical deer wintering habitat—made even more critical because it sits within a larger swath of deer habitat.

“It’s not purely about the numbers,” said Elizabeth Lord, an attorney for ANR. She said that while ANR would love to see the land conserved, the development would sit right in the middle of a wildlife corridor.

“It affects the integrity of the surrounding habitat and also has implications for movement throughout the larger habitat block,” she said.

Deer need habitat with cover and softwood trees where thecan forage for food undisturbed during winter months, she said, when snow saps their limited energy reserves. While it seems like Vermont has plenty of deer, a provision in Act 250 states that habitat should be preserved if it is crucial for the survival of a local population of wildlife.

Settlers Village could have directly impacted deer movement in the winter, and created secondary impacts by bringing humans into an area frequented by deer, she added.

O’Donnell said the Fontaines hired two wildlife experts to study the area and track deer. They found that “many of the positions ANR had taken were not supported by fact,” he said.

“We have proven that we’ve left enough land for deer,” Fontaine said. “We’ve done every study you can think of.”

PERMITS AND PLANS

The Fontaines received a discretionary permit from the town in 2009 for the subdivision.

The units would have been built on nearly 20 acres of the family’s 320-acre farm and conserved approximately 280 acres. The units would have been built in two segments, and a portion of them would have been perpetually affordable. Currently, the development site is an active sand pit. The site’s current Act 250 permit requires it to be restored once its use stops in 2016.

The brothers had planned the development as a way to diversify and keep their farm viable in order to pass it on to their children. Mike Fontaine said they intended to use the income to pay the roughly $18,000 in annual property taxes.

“Everyone who’s worked on this is so frustrated,” Fontaine said.

Fontaine said the town has been supportive of the project.

Williston Senior Planner Matt Boulanger said the town’s new bylaws, implemented in 2009, were written with projects like Settler’s Village in mind.

“It really hit all of the high points of what our bylaws talk about wanting to do in terms of preserving open space in the ag-rural zoning district,” Boulanger said. “In terms of the official (town) documents, this was the kind of project I would say we want.”

Fontaine said he is looking into plans for a nine-unit project in the same area, which would be built when the sandpit closes in 2016, helping them recoup some of the money they invested in Settlers Village.

In the meantime, Mike Fontaine said he’s not sure if the family will log the area or look into development in other areas on their property.

With the official end of Settlers Village, 35 units of allocation are back in the town’s system.

Although the project was planned in what’s known as the agricultural/rural zoning district, or ARZD, the allocation will not all go back to that district, said Planning and Zoning Director Ken Belliveau.

The Settlers Village project qualified for a zoning peculiarity known as invisible zoning—it could not be seen from any public roads and was clustered, among other requirements. That allowed it to draw some allocation from other zoning districts, in this case the village and residential zoning districts. With the end of the Settlers Village project, the allocation reverts back to its original zones.

Seventeen units will go back into residential and village zoning districts and 18 will go into the ARZD.

The current growth management system runs through June 30, 2015. Allocation for the current system was full, but the Fontaine’s withdrawal opens up the potential for more projects.

Anyone interested in developing in the ARZD must go before the Development Review Board for a pre-application permit by the end of 2013. Projects will then be reviewed, most likely in March 2014, when the DRB holds its annual growth management review.

Belliveau said he has heard from several people expressing interest in projects, and expects things to get busy in the planning office this fall. Boulanger suggested that anyone interested in development projects begin the pre-application process sooner rather than later, preferably by mid-October.